R. v. Lai Kok Ping

CACC000625/1994

IN THE COURT OF APPEAL

1994, No. 625
(Criminal)

_______________

_______________

Coram: Hon Power, V.-P., Mayo, J.A. and Barnett, J.

Date of hearing: 28 June 1995

Date of judgment: 28 June 1995

________________

J U D G M E N T

________________

Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against his conviction for trafficking in a dangerous drug. He was convicted after a trial lasting six days before Deputy Judge Jones on 23 November 1994 and sentenced to eight-and-a-half years' imprisonment the next day.

2. The charge was that the applicant unlawfully trafficked in a dangerous drug namely 249.90 grammes of a mixture containing 95.80 grammes of salts of esters of morphine.

3. The police conducted a raid at a hut on the roof top of premises in Li Tak Street in Mongkok on 29 April 1994. According to the evidence of the police officers the applicant answered the door when one of them knocked on it. At that time he was not wearing shoes.

4. A search was conducted on the premises and the dangerous drug referred to in the charge was found in a concealed location.

5. It was evident from the way in which prosecution witnesses were cross-examined that the main issue would be connecting the applicant with the premises which were the subject of the search.

6. The police officers maintained their evidence that the applicant had been in the premises when they had arrived. Indeed the applicant had demonstrated by using a plastic card how the door to the premises could be opened.

7. The applicant did not give evidence at his trial. It would appear that the jury accepted the prosecution evidence and were satisfied that the dangerous drug had been in the applicant's possession and that he was trafficking in the dangerous drug.

8. In his home-made grounds of appeal the applicant claimed that there was doubt about his connection with the dangerous drug and he complains that there was no finger print evidence linking him with the packets containing the dangerous drug.

9. We can see no merit in these complaints. There was ample evidence to link him to the hut and the fact that there was no finger print evidence is neither here nor there.

10. Before us he produced further grounds of appeal. He complained that the judge in his summing-up invited the jury to first consider whether he had been guilty of trafficking and if they decided that he was then to go on to consider the possession. This is not the position. The judge said at p6 of his summing-up:

"When used in its legal sense, possession means not only the physical possession of the article in question but also the intention to possess it. Two factors must, therefore, be proved before you may convict a defendant of trafficking based on the allegation that he possessed the dangerous drug for the purpose of trafficking.

These are, firstly, you must find that he possessed the dangerous drug in the legal sense of physical possession coupled with the intention to possess it. Secondly, you must find that he possessed the dangerous drug for the purpose of trafficking in it.

I suggest you approach your enquiry in the following manner: First, decide if you find it a fact proved beyond a reasonable doubt that the defendant possessed the dangerous drug in, of course, the legal sense as I have described it. That will be a matter of your findings on the evidence. I shall come to that shortly.

If you do not find it as a fact that he possessed the dangerous drug, then you should find the defendant not guilty. If however you do find as a fact that he possessed the dangerous drug, then you turn to the second aspect of your enquiry: Did he possess the dangerous drug for the purpose of trafficking in it?"

11. The second ground relied upon by the applicant was that the judge had allowed inadmissible and prejudicial evidence to go before the jury. The evidence in question was the evidence given by Inspector Fung concerning the quantity and street value of dangerous drug seized.

12. We ordered that the a transcript of the Inspector's evidence be made available. It is evident from this transcript that Inspector Fung was giving evidence as an expert and was cross-examined by the counsel representing the applicant on this basis. Inspector Fung was at the relevant time attached to the exhibits office, Research and Administration Section of the Narcotics Bureau. As such he would undoubtedly be an expert on the matters he was giving evidence on.

13. We do not see any merit in this appeal. The conviction is in no way unsafe or unsatisfactory and the application for leave to appeal against conviction is dismissed.

Representation:

Mr D.G. Saw, SACP for Crown Prosecutor

LAI Kok-ping, Applicant - in person/present